The new We Can Help campaign from the Department of Labor’s Wage and Hour Division along with the discontinuation of opinion letters sort of surprised me. I know that some people are going to think I’m really naïve for being surprised. After all, people frequently do things that aren’t in their best interests. Because I do not believe it is in the DOL’s best interest to stop working with employers and move to more of a punishment only model. From the DOL’s website:
Requests for opinion letters generally will be responded to by providing references to statutes, regulations, interpretations and cases that are relevant to the specific request but without an analysis of the specific facts presented.
I get that right now the pendulum is on the employer’s side. We’ve read the studies about how many people are unhappy at work today and plan to move on when the job market opens up. We know that some employers are taking advantage of the fact that their employee’s are “stuck” right now and not treating them well. But I think those folks will get their just desserts when the pendulum swings the other way and they find themselves with only poor to mediocre employees since the best folks will all leave when they can. Does the DOL really need to abandon all employers just because of those few bad apples? (This also reminds me that HR policy needs to make sense and not just be in place to thwart a few misguided folks, but I digress.)
I’ve said before that the employee-employer relationship is a symbiotic one. Employees don’t have jobs without employers, and most businesses can’t provide their products or services without employees. So we need each other. Therefore it seems the height of folly for the DOL to discontinue opinion letters if their intention really is to insure that employees are treated right. If employers can’t ask the DOL to help them, the likelihood of making a decision that violates a labor law will go up significantly. While some employees will go to the DOL for assistance, others won’t, and they’ll be ones who will suffer from this arrangement. Also, if the DOL no longer helps and employers (especially small employers) violate labor laws then end up with significant fines, they may go out of business. Going out of business means no paycheck, which puts many people in a worse place than the wrong paycheck. But no one over at the DOL asked my opinion, and they’ve rolled this campaign and decision out, for better or worse.
This all leads me to the conclusion that it’s essential that we as Compensation and HR professionals are well-informed and current on all of the legislation that applies to employee pay. Educating managers about the FLSA and other applicable laws has just become more important than ever. The tricky part will be figuring out how to apply everything in the laws. Several years ago we were dealing with a travel pay question. The FLSA is very clear about how travel should be paid, overnight trips were to be paid during normal working hours, or anytime the employee was doing something work related. But we have employees who don’t have normal working hours, they’re scheduled at various times throughout the day and night. We were able to call the DOL and get an answer on how to handle this situation. (For anyone who’s interested, we were told to average several weeks to determine the predominant schedule which would be considered “normal working hours.”) Now it sounds like it will be much harder to get assistance with this type of issue that falls outside of the current statutes and interpretations. I guess we’ll see how this all plays out, my guess: more work for attorneys. I truly hope it doesn’t harm the very individuals it’s meant to help.
Darcy Dees, CCP works as the Compensation Manager for Rock Bottom Restaurants, Inc., headquartered in Louisville, CO. She has worked with RBR for nearly 10 years helping to develop many of the compensation and performance management programs the company uses today. She spends what little free time she has hiking and reading.
The opinions expressed here are the personal opinions of Darcy Dees. Content published here is not monitored or approved by Rock Bottom Restaurants, Inc. before it is posted and does not necessarily represent the views and opinions of Rock Bottom Restaurants, Inc.
Image: We Can Help Poster - DOL
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